Legal Question in Wills and Trusts in Michigan

Re: Will Distribution

Hello, I have received a copy of your e-mail regarding your father's will. There is no specific time in which to file the will. Further, if there are no assets to probate, i.e.: there are no assets that were in your father's sole name, there is no need to file the will at all. As far as your second question is concerned, there are certain rights that a surviving spouse has to use estate assets for the benefit of the surviving spouse and their children. Please feel free to call me for more specific details or to schedule an appointment to discuss your case in more detail. John C. Talpos (http://www.Mich-Lawyer.com) (248) 743-6800

Re: Will Distribution

While this may be in more detail than you want, here goes. There is no concrete answer as the surviving spouse is entitiled to certain allowances regardless if she is a beneficiary or not. There is a widows allowance, family allowance and property expemptions.

If she does not come forward with the will within 42 days your options are listed below. I specialize in probate, check out my bio and website at www.myelderlaw.com or feel free to contact me at 248.647.4440.

700.3203 Priority among persons seeking appointment as personal representative

Sec. 3203. (1) For either formal or informal proceedings, subject to subsection (2), persons who are not disqualified have priority for appointment as personal representative in the following order:

(a) The person with priority as determined by a probated will including a person nominated by a power conferred in a will.

(b) The decedent's surviving spouse if the spouse is a devisee of the decedent.

(c) Other devisees of the decedent.

(d) The decedent's surviving spouse.

(e) Other heirs of the decedent.

(f) After 42 days after the decedent's death, the nominee of a creditor if the court finds the nominee suitable.

(g) The state or county public administrator if any of the following apply:

(i) No interested person applied or petitioned for appointment of a personal representative within 42 days after the decedent's death.

(ii) The decedent died apparently leaving no known heirs.

(iii) There is no spouse, heir, or beneficiary under a will who is a United States resident and is entitled to a distributive share in the decedent's estate.

(2) An objection to the appointment of a personal representative may be made only in a formal proceeding. If an objection is made, the priorities prescribed by subsection (1) apply except in either of the following circumstances:

(a) If the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, on petition of creditors, the court may appoint any qualified person.

(b) If a devisee or heir who appears to have a substantial interest in the estate objects to the appointment of a person whose priority is not determined by will, the court may appoint a person who is acceptable to the devisees and heirs whose interests in the estate appear to be worth in total more than 1/2 of the probable distributable value or, if no person is acceptable to these devisees and heirs, any suitable person.

(3) A person entitled to letters under subsection (1)(b) to (e) may nominate a qualified person to act as personal representative. A person may renounce his or her right to nominate or to an appointment by filing an appropriate writing with the court. If 2 or more persons share a priority, those of them who do not renounce shall concur in nominating another to act for them or in applying for appointment.

Re: Will Distribution

Even though you are not the nominated personal representative in the will, you may initiate the probate proceedings (use the form PC558-"Application for Informal Probate"). You must have the surviving spouse (and any brothers and sisters) sign a renunciation form, or else give them prior notice of your intent to initiate probate (use the form "Notice of Intent to Request Informal Appointment of Personal Representative-PC 557"). A copy of the notice and a copy of the application must be mailed at least 14 days or personally served at least 7 days prior to your appointment as personal representative. You can immediately begin this process, there is no longer a waiting period in Michigan.